National Association of Government, Employees, Local R4-78, (Union) and U.S. Department of Veterans Affairs, Medical Center, Martinsburg, West Virginia, (Agency)

[ v56 p418 ]

56 FLRA No. 58

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-78
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
MARTINSBURG, WEST VIRGINIA
(Agency)

0-AR-3222

DECISION

May 17, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman, and Dale Cabaniss, Member.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Stanley H. Sergent, Jr. filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievants' claim for environmental differential pay (EDP). For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a class action grievance, claiming that the grievants were entitled to EDP because they had been exposed to hazardous levels of asbestos. When the grievance was unresolved, the matter was submitted to arbitration. Before the Arbitrator, the parties stipulated to the following issues: "Are the members of the class entitled to environmental differential pay or hazardous duty pay differential? If so, what is the remedy?" Award at 4.

      As an initial matter, the Arbitrator determined that, under the parties' agreement, any possible EDP recovery would be limited to the 14-day period preceding the grievance.

      The Arbitrator stated that either a qualitative or a quantitative standard could be used to determine what level of asbestos exposure would warrant an EDP award. The Arbitrator stated that, under a qualitative standard, "any level of airborne asbestos" would constitute an unusually severe hazard. Alternatively, under a quantitative analysis, "a given threshold, such as the [permissible exposure level (PEL) established by the Occupational Safety and Health Administration (OSHA)], would have to be met[.]" Award at 28. The Arbitrator concluded that "the scientific evidence and the arguments advanced by the Agency in support of the quantitative approach [were] more compelling" than the Union's arguments in support of a qualitative approach. Id.

      Addressing what quantitative standard should be applied, the Arbitrator found that Article 1 of the parties' agreement mandated the application of Agency regulations in all matters arising under the agreement. The Arbitrator also found that an Agency regulation set the PEL to asbestos as the level established by OSHA. [n1]  Accordingly, the Arbitrator determined that he would apply the OSHA PEL in assessing whether the employees were entitled to EDP. The Arbitrator held, in this connection, that the Union was required to demonstrate, by a preponderance of evidence, that the concentrations of asbestos to which employees were exposed exceeded the OSHA PEL.

      The Arbitrator determined that the Union had not provided credible evidence that airborne concentrations of asbestos ever exceeded the OSHA PEL. In addition, the Arbitrator found that there was no evidence that any employees became ill or demonstrated any symptoms of asbestos-related disease. The Arbitrator also found that the Agency's evidence established that airborne concentrations of asbestos were consistently below the OSHA PEL.

      The Arbitrator acknowledged that the Agency had failed to engage in "careful record keeping," and that the Agency "fail[ed] to comply strictly with the provisions of [Agency] circulars mandating semi-annual environmental sampling[.]" Award at 38. However, the Arbitrator concluded that "these deficiencies cannot overcome the complete lack of proof in the huge volume of evidence submitted that the employees were exposed to a dangerous condition." Id. Additionally, the Arbitrator determined that "plausible explanations were provided for most of the instances of non-compliance with [ v56 p419 ] the record-keeping requirements[,]" and that there was not sufficient evidence to demonstrate that the record-keeping deficiencies resulted from deliberate acts of deception by the Agency. Id. Accordingly, the Arbitrator declined to draw an adverse inference against the Agency based on the missing records.

      The Arbitrator concluded that the Union failed to establish that the grievants were exposed to harmful levels of airborne asbestos. Accordingly, he denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is based on the nonfact that employees were not exposed to hazardous levels of asbestos. In this connection, the Union contends that certain facts set forth in the award establish that employees were so exposed.

      The Union also claims that the Arbitrator erred by declining to draw an adverse inference from the Agency's failure to produce complete records. According to the Union, the Agency failed to provide a legitimate explanation for the missing records, and the Arbitrator should have drawn an adverse inference as a matter of law.

      The Union also contends that the Arbitrator erred by applying the OSHA PEL. According to the Union, the Authority has held that permissible exposure levels are to be determined by the parties, "not simply by the non-binding OSHA standards." Exceptions at 8 (citing American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs Medical Center, Boise, Idaho, 44 FLRA 707, 712 (1992) (VAMC, Boise). The Union claims that the Arbitrator misinterpreted the parties' agreement as providing that all Agency regulations -- including regulations adopting the OSHA standard -- were binding. In this connection, the Union asserts that the agreement does not indicate that the Agency cannot be required to meet a higher standard than is set forth in those regulations.

      Finally, the Union argues that the Arbitrator's determination that the parties' agreement imposes a 14-day limit on recovery fails to draw its essence from Article 47, Section 10 of the parties' agreement.

B.     Agency's Opposition

      The Agency argues that the award is not based on a nonfact, because the Arbitrator did not err in finding that the employees were not exposed to hazardous levels of asbestos. The Agency also argues that the Arbitrator was not required to draw an adverse inference based on the missing records, because witness testimony indicates that the alleged destruction of the records was not intentional, and there is no evidence indicating that the lost samples would have been unfavorable to the Agency. Further, the Agency argues that, pursuant to various provisions of the parties' agreement and an applicable Agency regulation, the Arbitrator properly applied the OSHA PEL. Finally, the Agency contends that the parties' agreement limits any potential EDP recovery to a 14-day period.

IV.     Analysis and Conclusions

A.     The Award Is Not Based on a Nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that was disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union challenges the Arbitrator's finding that the employees were not subjected to hazardous levels of asbestos. As this matter was disputed below, the Union's exception does not provide a basis for finding the award deficient, and we deny the exception.

B.     The Award Is Not Contrary to Law.

      The Union argues that the Arbitrator erred, as a matter of law, by declining to draw an adverse inference from the Agency's inability to produce certain records.

      The Authority reviews the questions of law raised by the award and the Union's exception de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the Arbitrator's factual determinations. See id. [ v56 p420 ]

      The Union cites no authority holding that arbitrators are required to draw adverse inferences from missing evidence, but rather, relies on cases concerning the drawing of adverse inferences in Federal court litigation. Even assuming that the Federal court decisions cited by the Union apply here, those decisions do not demonstrate that the Arbitrator erred by declining to draw an adverse inference from the missing evidence. In particular, Federal courts consider whether the evidence was intentionally destroyed, and the likely contents of that evidence. See Kronisch v. U.S., 150 F.3d 112, 127 (2nd Cir. 1998). In this case, the Arbitrator specifically found that there was not "sufficient evidence to support a finding that [the Agency's record-keeping] deficiencies occurred as deliberate acts of deception" by the Agency. Award at 38. In addition, the Arbitrator found that those deficiencies could not "overcome the complete lack of proof in the huge volume of evidence submitted[.]" Id. Further, in declining to draw an adverse inference, the Arbitrator relied on the testimony of a witness who had personally collected some of the missing samples, and who testified that he did not recall any of the samples exceeding the OSHA PEL. The Arbitrator's factual findings, to which we defer, and the evidence on which he relied, support a conclusion that the Arbitrator did not err as a matter of law by declining to draw an adverse inference.

      Accordingly, we deny the exception. In so doing, we emphasize that we are only assuming, and not finding, that the case law cited by the Union applies to arbitration proceedings.

C.     The Award Draws its Essence from the Parties' Agreement.

      The Union argues that the Arbitrator misinterpreted the parties' agreement as requiring application of an Agency regulation adopting the OSHA PEL.

      In order for an award to be found deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997) (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

      The Authority has held that parties are free to negotiate, or determine through arbitration, the quantitative level of asbestos exposure to be used for employee entitlement to EDP. See U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and American Federation of Government Employees, Local 3961, 53 FLRA 46, 51 (1997). Thus, when the parties submit to arbitration a dispute involving exposure to asbestos, the arbitrator is free, consistent with the parties' collective bargaining agreement, to determine what quantitative level of asbestos exposes employees to illness or injury and to determine how that level is derived or calculated. See VAMC, Boise, 44 FLRA at 711-12.

      The Union concedes that the parties' agreement requires the Agency to act in accordance with its own regulations, Exceptions at 8, and does not dispute that an Agency regulation expressly adopts the OSHA PEL. The Union argues only that the agreement did not prohibit the Arbitrator from imposing a higher standard on the Agency. However, even assuming that the Arbitrator had such discretion, the Union has not demonstrated that the failure to exercise it was irrational, implausible, or in manifest disregard of the parties' agreement. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement in this regard.

      With regard to the Union's argument that the Arbitrator erroneously found that the parties' agreement limited recovery to 14 days, the Arbitrator found that no remedy of EDP was warranted and, as discussed supra, the Union has not demonstrated that this finding was erroneous. As a result, the Arbitrator's finding regarding the time limit applicable to such a recovery constitutes dicta and would not provide a basis for finding the award deficient even if unsupported. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 51 FLRA 714, 719 (1995).

      In sum, the Union's exceptions do not provide a basis for finding that the award fails to draw its essence from the parties' agreement. Accordingly, we deny the exceptions.

V.     Decision

      The Union's exceptions are den